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Sunday, July 21, 2013

New Jersey high court requires warrants for cell-phone location data

Grits is aware that some readers are sick of hearing about cell-phone location tracking. Those complaining should have done more to help pass Rep. Hughes and Senators Hinojosa and Estes' legislation this spring - if that had become law I'd have shut up about it about it by now! Instead, y'all get two more years of the topic while Grits preps for a renewed push in 2015. Lucky you. ;) After all, if Texas had already passed our bill, I'd have no need to highlight a recent New Jersey state Supreme Court opinion (pdf, 43 pages) requiring a warrant for cell-phone location data in the Garden State. That court found that, even though the relevant language is "nearly identical" to that in the Bill of Rights, privacy rights under New Jersey's state constitution are "not always coterminous" with SCOTUS rulings and in this case afford additional protections. Still, IMO the New Jersey court made a valid Fourth Amendment argument, too, even if the US Supreme Court would have to revisit and revise a couple of ill-considered precedents from the 1970s in order to adopt similar logic. From the opinion:

When people make disclosures to phone companies and other providers to use their services, they are not promoting the release of personal information to others. Instead, they can reasonably expect that their personal information will remain private. Using a cell phone to determine the location of its owner is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate. Details about the location of a cell phone can provide an intimate picture of one’s daily life and reveal not just where people go – which doctors, religious services, and stores they visit – but also the people and groups they choose to affiliate with. That information cuts across a broad range of personal ties wit h family, friends, political groups, health care providers, and others. In addition, modern cell phones blur the historical distinction between public and private areas because phones emit signals from both places.

Bingo! The New Jersey court unanimously stepped up to say what Justice Sonia Sotomayor suggested in a lone concurrence in US v. Jones: That it's time to reconsider the "Third Party doctrine" created by the courts as an exception to the Fourth Amendment when personal information is shared with others in routine business transactions. Thurgood Marshall presciently warned of the dangers such "special needs" exceptions pose. The example of German politician Malte Spitz shows how much information can be garnered just by combining someone's personal location data with their Facebook and Twitter accounts. He famously won access to his cell-tracking data through litigation and teamed up with a newspaper to generate a creepily detailed, annotated map of everywhere he'd been.

Once aggregated with other "Big Data" sources, commercial databases as well as self-disclosed data scraped from social media, etc., such personal, en masse tracking makes George Orwell's novel 1984 seem quaint by comparison. Because knowledge (and therefore data) is power, the use of personal data has metastasized among police and corporate powers in the 21st century. However, as the New Jersey Supreme Court opined, "No one buys a cell phone to share detailed information about their whereabouts with the police." (Is that why you bought yours?)

Later in the opinion, the New Jersey court evinced a deep understanding of the bind in which existing Fourth Amendment doctrine places average citizens. "Just as customers must disclose details about their personal finances to the bank that manages their checking accounts, cell - phone users have no choice but to reveal certain information to their cellular provider. That is not a voluntary disclosure in a typical sense; it can only be avoided at the price of not using a cellphone." "Modern cell phones," observed the court, "blur the historical
distinction between public and private areas because cell phones emit
signals from both places."

Grits has been heartened that several other states - so far Montana, Missouri and Maine, that I know of - have legislatively required a warrant for cell-phone location data, but New Jersey is the first state high court that I'm aware of to do so. Josh Gerstein at Politico summarized the New Jersey case thusly:

The case centers around a man suspected of burglary in 2006.
Searching for him and his girlfriend, whose safety they were concerned
about, police got location information from his provider, T-Mobile, on
three occasions in one night. Detectives found the suspect at a motel
based on one of the location traces, and they also found stolen property
and marijuana. He pled guilty to the charges, but was allowed to appeal
a ruling on a motion to suppress the evidence collected that night.

Lamenting that federal court and U.S. Supreme Court cases on
electronic location tracking are divided and unclear on expectations of
privacy for cell phone location, the state court focused on the New
Jersey Constitution instead of the Fourth Amendment in its reasoning.
State law makes clear that information given to third-party services in
order to obtain service is still subject to an expectation of privacy,
the court found, meaning police must get a warrant based on probable
cause before seeking the information, aside from emergency
circumstances.

Writing for the seven-judge court, Chief Justice Stuart Rabner said
that the prevalence of cell phones today only makes the privacy
expectation more important.

“Disclosure of cell-phone location information, which cell-phone
users must provide to receive service, can reveal a great deal of
personal information about an individual. With increasing accuracy, cell
phones can now trace our daily movements and disclose not only where
individuals are located at a point in time but also ... with whom they
choose to associate," Rabner wrote. "Yet people do not buy cell phones
to serve as tracking devices or reasonably expect them to be used by the
government in that way. We therefore find that individuals have a
reasonable expectation of privacy in the location of their cell phones
under the State Constitution."

Since New Jersey's high court ruled under their state constitutional protections, it's worth asking, could the Texas Court of Criminal Appeals construe our state constitution - irrespective of federal requirements - to require law
enforcement to secure a warrant to access cell-phone location data? Here's the relevant language in Texas' foundational document, found in Article I, Section 9: "The people shall be secure in their persons, houses, papers and
possessions, from all unreasonable seizures, and no warrant to search
any place, or to seize any person or thing, shall issue without
describing them as near as may be, nor without probable cause, supported
by oath or affirmation."

Setting aside for a moment any pessimism one might harbor about the pro-prosecution bent of the current presiding judge and several long-timers who consistently vote with her on the Texas Court of Criminal Appeals, in this non-lawyer's opinion Texas' constitution may not provide quite as explicit an hook. The US Fourth Amendment and New Jersey's constitution use the word "effects," while the Texas constitution replaced that word with "possessions." One can easily argue my cell-phone location data are part of my "effects." Are those data my "possession"? Really, it's the cell-phone company that possesses the data. Perhaps, then, it's arguable that a warrant should be required to get it from them? If after Citizens United we've decided to treat corporations as people, after all, then perhaps my cell-service provider has Fourth Amendment rights, too? I'm spitballing here. Who knows? A lot would depend on the posture of whichever case made it before the court, not to mention who replaces three erstwhile moderates on the CCA who're leaving the bench next year. This is all wide-open, unsettled law, which is another reason it would have been great for the Texas Legislature to consider the issue comprehensively and lay down some ground rules.

2 comments:

11:25, the Lege doesn't meet again until 2015. For now, the main thing is to make sure the issue is raised at every opportunity during the primary and general elections in 2014, especially on the GOP side and particularly with senators, where we need all the help we can get. Members need to see that their constituents care about this topic, which is new to them (and ftm, everybody) and before this session wasn't on their radar screen. If they've heard about it in their districts during campaign season, it makes our job selling the bill a lot easier when they get back to Austin.

Southern, daily and good for you

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